Adams v. Fritz Martin Cabinetry, LLC et al
Filing
25
ORDER granting 24 Plaintiff's Motion for Default Judgment. The Clerk shall enter default judgment in favor of plaintiff and against defendants as to Counts I, II, and V for unpaid wages in the amount of $4,048.35, plus $8,848.35 in liquidated and treble damages. Attorney's fees are awarded in favor of plaintiff in the amount of $4,920, and statutory costs in the amount of $400. Counts III and IV are dismissed without prejudice for failure to prosecute. The Clerk is further directed to terminate all pending matters and to close the file. Signed by Judge John E. Steele on 9/5/2018. (BLW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHERYL
MARIE
individual,
ADAMS,
an
Plaintiff,
v.
Case No:
2:18-cv-83-FtM-99MRM
FRITZ MARTIN CABINETRY, LLC,
a Florida limited liability
company
and
AARON
J.
SCHOSSAU, individually,
Defendants.
ORDER
This matter comes before the Court on plaintiff’s Motion for
Default Judgment (Doc. #24) filed on July 23, 2018.
has been filed and the time to do so has expired.
No response
The Court finds
that an evidentiary hearing is not required in this case and will
render a decision based on the documents submitted.
I.
On February 7, 2018, plaintiff Cheryl Marie Adams filed a
five-count Complaint (Doc. #1) against her former employer, Fritz
Martin
Cabinetry,
“defendants”).
LLC
and
Aaron
J.
Schossau
(collectively
Plaintiff alleges that Schossau was the individual
who owned and/or operated Fritz and her direct supervisor with
direct
authority
to
hire
and
fire
employees,
determine
work
schedules, and control the finances and operations of Fritz.
(Id., ¶ 6.)
Plaintiff’s Complaint seeks damages for defendants’
willful failure to pay overtime compensation and minimum wage
compensation under the Fair Labor Standards Act, 29 U.S.C. § 207
(FLSA), as well as for violation of Florida’s Unfair and Deceptive
Trade Practices Act, Fla. Stat. § 501.201 et seq. (FDUTPA), willful
filing of fraudulent tax returns under 26 U.S.C. § 7434, and a for
dishonored payment instrument under Fla. Stat. § 68.065.
Because
defendants
failed
to
respond
to
plaintiff’s
Complaint, Clerk’s Entries of Default (Docs. ##15, 23) were entered
on May 2 and July 3, 2018.
Plaintiff now moves for the entry of
judgment against defendants as to Counts I (overtime), II (minimum
wage), and Count V (dishonored payment) only.
When
a
default
judgment
occurs,
a
plaintiff’s well-pled allegations of fact.
defendant
admits
the
If liability is well
pled, it is established by virtue of a default judgment.
v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987).
Buchanan
The mere entry of
a default by the clerk does not in itself warrant the entry of
default by the Court.
Rather the Court must find that there is
sufficient basis in the pleadings for the judgment to be entered.”
GMAC Commercial Mortg. Corp. v. Maitland Hotel Assocs., Ltd., 218
F. Supp. 2d 1355, 1359 (M.D. Fla. 2002) (citation omitted).
A
complaint must state a claim in order for default judgment to be
granted.
Id.
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II.
A. Overtime and Minimum Wage Compensation (Counts I, II)
According to the Complaint, upon information and belief at
all relevant times, defendant Fritz was an enterprise engaged in
interstate commerce, or the production of goods for interstate
commerce, with an annual gross revenue in excess of $500,000.
(Doc. #1, ¶¶ 11-12.)
In the Complaint and plaintiff’s Declaration
filed in support of default (Doc. #24-1), plaintiff pled and
averred
that
she
was
hired
in
February
2017
and
worked
for
defendants in a design position until her employment ended in
August
2017.
(Id.,
¶
2.)
Plaintiff
engaged
in
interstate
commerce by working with out of state vendors on customer orders,
working
with
design
representative
in
out-of-state
factories,
ordering products, pricing, and consulting with representatives on
customer orders.
Moreover, defendants required her to travel out
of state for work.
(Doc. #1, ¶ 12; Doc. #24-1, ¶ 3.)
Plaintiff’s primary duties included working in the showroom,
liaising
with
vendors,
regarding
ordering,
customers,
pricing,
and
and
design.
potential
(Doc.
customers
#1,
¶
20.)
Plaintiff did not have discretion over matters of significance,
and
did
not
supervise
other
employees,
perform
management
functions, or provide significant input in the hiring or firing of
other employees.
(Id.)
As such, for FLSA purposes, plaintiff
alleges that she was not employed in a bona fide executive,
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professional,
or
administrative
capacity
misclassified her as an exempt employee.
Although
defendants
plaintiff
wrongfully
was
hired
compensated
for
her
and
defendants
time
employment,
(Id.)
full
as
if
she
worked
for
defendant as an independent contractor, i.e., failing to make
standard
employee
plaintiff,
and
payroll
failing
to
deductions
satisfy
plaintiff’s employee payroll taxes.
the
and
withholdings
employer’s
for
portion
(Doc. #1, ¶ 14.)
of
Therefore,
for compensation purposes only, and to thwart the FLSA and taxation
requirements of the state and federal governments, defendants
misclassified
plaintiff
as
an
independent
contractor.
(Id.)
Despite paying plaintiff on a salary basis at $1,200 per week, she
was not at any time exempt from the minimum wage and/or overtime
provisions of the FLSA.
(Id., ¶ 15.)
Defendants failed to
provide any compensation to plaintiff for any hours worked over 40
hours a week and failed to pay her overtime.
22.)
(Id., ¶¶ 16, 21,
Defendants also failed to compensate plaintiff for 3.5 hours
of training, and for the last two weeks of work.
(Id., ¶ 17.)
Moreover, although she was a salaried employee, defendants docked
plaintiff’s pay for holidays and any time she was not in the
office.
(Id., ¶ 19.)
While plaintiff has not produced any time sheets or time
cards, “the employee has carried out his burden if he proves that
he
has
in
fact
performed
work
for
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which
he
was
improperly
compensated and if he produces sufficient evidence to show the
amount and extent of that work as a matter of just and reasonable
inference.”
Etienne v. Inter–County Sec. Corp., 173 F.3d 1372,
1373 (11th Cir. 1999) (citations omitted).
has
held
“[t]he
overwhelming
weight
The Eleventh Circuit
of
authority
is
that
a
corporate officer with operational control of a corporation’s
covered enterprise is an employer along with the corporation,
jointly and severally liable under the FLSA for unpaid wages.”
Patel v. Wargo, 803 F.2d 633, 637-38 (11th Cir. 1986).
The Court finds that plaintiff has adequately pled the failure
to pay overtime and minimum wage compensation under the FLSA
against
defendants,
which
allegations
are
deemed
admitted,
supporting the entry of a default judgment against defendants as
to Counts I and II.
With regard to damages for Counts I and II, attached as
Exhibit
2
detailing
to
the
her
Declaration,
amount
she
is
plaintiff
sets
forth
upon
her
reasonable
(Doc. #24-1, p. 5.)
Plaintiff
owed
recollection of hours worked.
based
a
table
states that she is owed unpaid overtime compensation in the amount
of $1,620 for work from April 29, 2017 to August 19, 2017.
(Id.)
This figure was arrived at by multiplying her effective overtime
rate of $45.00 per hour by 36 hours of overtime.
Plaintiff also
alleges she is entitled to and equal amount of liquidated damages
of $1,620, for a total of $3,240.
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With regard to minimum wage compensation, plaintiff alleges
that on or about February 21, 2017, she performed 3.5 hours of
training work at the owner’s home for which she received no
compensation.
their
(Doc. #24-1, p. 5.)
employees
at
least
the
FLSA requires employers to pay
federal
or
state
whichever is greater, for every hour worked.
206, 218(a).
minimum
wage,
See 29 U.S.C. §§
Florida minimum wage during this time was $8,10, and
therefore plaintiff alleges she is owed $28.35 in minimum wage
payments and an additional $28.35 in liquidated damages, for a
total of $56.70.
B. Compensation for Dishonored Payment (Count V)
The
Complaint
alleges
that
on
September
1,
2017,
after
plaintiff’s employment had ended, defendants issued a check drawn
on Bank of America to her in the amount of $2,400 as payment for
her last two weeks of work.
(Doc. #1, ¶ 18.)
Plaintiff alleges
that defendants (acting through Schossau) issued this check with
the intent to defraud plaintiff, as defendants quickly stopped
payment on the check after issuing it, without any advance notice
or warning to plaintiff.
(Id.)
Accordingly, the check was
dishonored, and plaintiff has not been compensated for her last
two weeks of work.
(Id.)
Plaintiff alleges defendants did this with the intent to
defraud under Fla. Stat. § 68.065(3)(a), and therefore she is
entitled to treble damages under the statute in the amount of
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$7,200, in addition to payment of the dishonored instrument in the
amount of $2,400.
Florida statute 68.065(3)(a) provides:
In any civil action brought for the purpose of collecting
a payment instrument, the payment of which is refused by
the drawee because of lack of funds, lack of credit, or
lack of an account, or where the maker or drawer stops
payment on the instrument with intent to defraud, and
where the maker or drawer fails to pay the amount owing,
in cash, to the payee within 30 days after a written
demand therefor, as provided in subsection (4), the
maker or drawer is liable to the payee, in addition to
the amount owing upon such payment instrument, for
damages of triple the amount so owing. However, in no
case shall the liability for damages be less than $50.
The maker or drawer is also liable for any court costs
and reasonable attorney fees incurred by the payee in
taking the action. Criminal sanctions, as provided in
s. 832.07, may be applicable.
Under Fla. Stat. § 68.065, “if payment of a check is refused by a
drawee-bank for insufficient funds, a payee may bring a cause of
action against the drawer for recovery of the amount of the check
plus treble the amount of the check.”
F&A Dairy Prods., Inc. v.
Imperial Food Distribs., Inc., 798 So. 2d 803, 803 (Fla. 4th DCA
2001).
At least 30 days before suing, the plaintiff must deliver
a written demand “by certified or registered mail, evidenced by
return receipt, or by first-class mail, evidenced by an affidavit
of
service
of
mail,
to
the
maker
or
drawer
of
the
payment
instrument to the address on the instrument, to the address given
by the drawer at the time the instrument was issued, or to the
drawer’s last known address.”
Fla. Stat. § 68.065(4).
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In this case, plaintiff, through counsel, sent defendants a
demand for payment on October 19, 2017 via return receipt requested
to plaintiff’s place of business (the address on the check).
#24-1, pp. 7-10.)
(Doc.
The demand included language to put defendants
on notice that the check was dishonored, that they had 15 days to
tender payment, and failure to pay in full could result in treble
damages.
(Id.)
Defendants did not honor the check.
Pursuant to
the statute, the drawer has 30 days after a written demand to make
payment, yet, plaintiff’s letter demanded payment in 15 days.
However,
this
does
not
affect
the
Court’s
analysis
as
to
defendants’ liability because more than 30 days passed from the
time defendants were sent the letter and the filing of plaintiff’s
Complaint.
Here, the well-pleaded factual allegations of the Complaint,
which are deemed admitted, as well as the Declaration and its
exhibits, warrant the entry of default judgment.
Defendants
tendered a check to plaintiff for $2,400, but a stop payment had
been placed.
(Doc. #24-1, p. 8.)
More than 30 days before suing,
through a letter to Schossau sent by certified mail (receipt
confirmed) to the address on the check, plaintiff demanded that
Schossau honor the check and included the required language as set
forth in Fla. Stat. § 65.065(4).
(Doc. #24-1, pp. 7-10.)
Under
section 68.065, plaintiff is entitled to three times the amount of
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the check, which is $7,200, as well as unpaid wages in the amount
of $2,400.
III.
A. Attorney’s Fees
Plaintiff seeks an award of $4,920 in attorney’s fees.
In
support, plaintiff filed the Declaration of Bradley Rothman, as
well as a timesheet.
(Docs. ##24-3, 24-2.)
The Declaration
details counsel’s background and experience, and an hourly rate of
$350 per hour until 2017.
Counsel now operates at a rate of $400
an hour due to the amount of experience he has gained since the
Court previously approved his requested hourly rate of $350 per
hour.
(Doc. #24-4, ¶ 14.)
This includes the litigation of a
number of highly complex cases, some of which proceeded through
trial.
(Id.)
Counsel expended 12.3 hours on this case.
(Id., ¶
20; Doc. #24-3.)
A reasonable attorney fee is calculated by multiplying the
number of hours reasonably expended by the reasonable hourly rate.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
The party seeking
an award of fees should submit adequate documentation of hours and
rates in support, or the award may be reduced.
Id.
In determining
the reasonable amount of hours, the Court may conduct an hour-byhour analysis or it may reduce the requested hours across the
board, Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir.
2008), and the Court must eliminate excessive, unnecessary, and
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redundant hours.
Norman v. Housing Auth. of Montgomery, 836 F.2d
1292, 1301-02 (11th Cir. 1988).
A “reasonable hourly rate” is
“the prevailing market rate in the relevant legal community for
similar
services
by
lawyers
of
experience, and reputation.”
reasonably
Id. at 1299.
comparable
skills,
The burden is on the
fee applicant “to produce satisfactory evidence” that the rate is
in line with those prevailing in the community.
465 U.S. 886, 896 n.11 (1984).
Blum v. Stenson,
The prevailing market is the Fort
Myers Division of the Middle District of Florida.
Olesen-Frayne
v. Olesen, 2:09-CV-49-FTM-29DNF, 2009 WL 3048451, *2 (M.D. Fla.
Sept. 21, 2009).
Having reviewed the time sheet (Doc. #24-3), the Court finds
that the hours expended are reasonable, and while the hourly rate
may be on the higher end of reasonable in the Fort Myers Division,
it is not disputed by defendants.
The Court will grant $4,920 in
reasonable attorney’s fees as requested.
B. Costs
Plaintiff also seeks statutory costs. (Doc. #24-2.)
The
plain text of the FLSA only provides for “costs of the action” to
the prevailing party, which limits recovery to those statutory
costs listed in 28 U.S.C. § 1821 and 28 U.S.C. § 1920.
Gen. Motors Corp., 841 F.2d 1567, 1575 (11th Cir. 1988).
claims $400 for the filing fee.
Glenn v.
Counsel
The Court will allow the cost as
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enumerated in 28 U.S.C. § 1920.
Therefore, the Court will award
a total of $400 in statutory costs.
Plaintiff has not sought judgment as to her remaining claims
(Counts III and IV) and the time to do so has expired, subjecting
the claims to dismissal without prejudice for failure to prosecute.
See M.D. Fla. R. 1.07(b).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Plaintiff’s Motion for Default Judgment (Doc. #24) is
GRANTED.
The Clerk shall enter default judgment in favor of
plaintiff and against defendants as to Counts I, II, and V for
unpaid
wages
in
the
amount
of
liquidated and treble damages.
$4,048.35,
plus
$8,848.35
in
Attorney’s fees are awarded in
favor of plaintiff in the amount of $4,920, and statutory costs in
the amount of $400.
2.
Counts III and IV are dismissed without prejudice for
failure to prosecute.
3.
The Clerk is further directed to terminate all pending
matters and to close the file.
DONE and ORDERED at Fort Myers, Florida, this __5th__ day of
September, 2018.
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Copies:
Counsel of Record
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